Judicial reckoning

In an amendment bulldozed through by the then Tun Dr Mahathir Mohamad administration’s two-thirds strong majority in parliament in 1988, the judicial power conferred upon by the Constitution was taken from the hall of justice.

Commentary by Thomas Soon, THE EDGE

Two decades and a peaceful revolution of sorts later, the process of bringing back equilibrium to the balance of power among the three arms of government has begun.

The voice of the people in the last general election may indirectly go down in history as the single most influential factor that leads to the restoration of the independence of the judiciary.

While Prime Minister Datuk Seri Abdullah Ahmad Badawi’s Barisan Nasional may have lost four states and failed to win back Kelantan, it has not lost its power mandated by the people to govern the country.

Whatever Abdullah’s motives may be, political or otherwise, the Umno president and BN chairman is now using that mandate to deliver monumental change in our political system.

His administration has begun the process of rejuvenation of the judiciary — a cornerstone of the Constitution — via the proposed setting up of a Judicial Appointments Commission.

The commission, it is hoped, will aid the prime minister in appointing judges in a credible and transparent manner, thereby leading to a judiciary that will be seen to be imbued with integrity and respect for the rule of law and natural justice.

While Abdullah has taken the courageous first step towards reconciling the executive arm with the judiciary, it, however, cannot be the be-all and end-all of measures to bring back trust among the people and the international investors.

Section 121(1) of the Constitution of Malaysia binding the courts to executive and legislative actions will have to be returned to its original version for the entire system of government to regain the trust of the people.

There are no two ways about it. The original Section 121(1) declared that the “judicial power of the Federation” shall be vested in the courts.

In an amendment bulldozed through by the then Tun Dr Mahathir Mohamad administration’s two-thirds strong majority in parliament in 1988, the judicial power conferred upon by the Constitution was taken from the hall of justice.

Instead, the judiciary was granted only such judicial powers that parliament allows it — effectively relegating it to being part of the civil service that was subservient to the government of the day.

Effectively, given its control of parliament, the balance of power among the three branches of government — executive, legislature and judiciary — tilted to the executive arm.

Since then, the democratic equilibrium was lost and has not been regained since. From that moment, on matters ranging from sports to healthcare, an Act that gives the final decision to federal ministers could not be questioned in court.

Theoretically, government officials could act with impunity, unchallenged. Remember the days when Malaysia was tagged with such phrases as “dictatorship”?

How could this have been allowed to happen, many may wonder. Where were the judges when all this happened? The then Lord President Tun Salleh Abbas tried to prevent it.

In the power tussle between the executive and the judiciary, six prominent judges, including Salleh, were sacked. The Opposition’s voice was drowned out in parliament. The Bar Council was no match against the executive will.

Many had griped at the Mahathir administration’s firm grip on the mainstream media, which was, and continues to be, owned by ruling parties, but dissenting voices were effectively undermined.

As honourable as the restoration of the pride and integrity of the sacked judges is, it is equally vital that the country’s democratic foundation — the separation of powers — be restored to its rightful place in the Constitution.

Some may argue that the judges themselves were to be blamed for not standing resolute and the fact that the judiciary never as a single unit challenged the constitutional amendments suggested perhaps it lacked depth.

The judiciary was cowed into subservience and new faces, apparently amid minority dissenting voices, were more than happy to play second fiddle to the executive.

Subsequently, the culture of patronage, so dominant in our political parties, crept into the judiciary.

Some may also argue that the judiciary’s integrity and inherent right to question executive and legislative measures was never lost in the first place, but save for minority dissenting voices, it has not been able to shake off the executive shackle.

A new era is dawning upon us. De facto Law Minister Datuk Zaid Ibrahim has expressed the need for separation of powers, and Chief Justice Datuk Abdul Hamid Mohamad has likewise reaffirmed it, calling judges to be strong enough to resist any attempt to interfere with their independence.

Abdullah has spoken of the need to revitalise the judiciary, which “must be fortified to be an institution that serves the democratic principle of separation of powers”.

Blame it on dictatorial rule, patronage, the media or general apathy and lack of awareness of the public, for what was — but the judiciary now has a chance to redeem itself and to find its rightful place in the Constitution.

We may be on the way to maturing into a civil society, but Section 121(1) has to be amended, no question of perception.

The executive, legislature and judiciary will lock horns again in the future, to be sure, and again, it will have to be the people, directly or indirectly, who will have to ensure that justice is done and seen to be done.